Metzger, E. (2009) Adam Smith’s historical jurisprudence and the
"method of the civilians". In: Smith in Glasgow '09, 31 March - 2 April
2009, Glasgow, UK.
http://eprints.gla.ac.uk/25492/
Deposited on: 17 March 2010
Enlighten – Research publications by members of the University of Glasgow
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This paper was presented on April 2, 2009, at Smith in Glasgow ’09, a conference held at
the University of Glasgow, 31 March – 2 April 2009, to commemorate the 250th
anniversary of the publication of The Theory of Moral Sentiments.
Adam Smith’s Historical Jurisprudence
and the “Method of the Civilians”
Ernest Metzger*
Abstract. Smith lectured in jurisprudence at the University of Glasgow from 1751 to
1764, and various records of these lectures survive. Since Smith never completed a
treatise on law, these records are the principal source for his theory of lawmaking. In his
final year at Glasgow, Smith undertook to reorganize the course of lectures: he began
with a series of lectures on “forms of government,” where formerly these lectures had
fallen at the very end. He explained that his reorganized lectures followed the method of
the civilians (i.e., contemporary writers on Roman law), and that this method was to be
preferred.
This paper discusses Smith’s theory of lawmaking and seeks to explain why he
undertook to reorganize his lectures. Some scholars have argued that Smith had a
substantive reason for his decision, i.e., that the change was demanded by his developing
theory of law. This paper, to the contrary, argues that his decision was far more
innocent. He had occasionally sought to explain how certain laws came about by
reference to the “ages of society.” This is the theory that societies tend to present
themselves under the model of one of four ages, each age identifiable by a certain mode of
subsistence. This “stadial theory,” however, though adequate to explain the genesis of a
handful of rights, was inadequate to explain the genesis of most laws. For the latter,
Smith used a more immediate cause: form of government. Yet exposition of this thesis
was difficult when the lectures on government were postponed to the end. Smith’s
decision to reorganize the course of lectures helped to cure the problem.
The method of the civilians, whom Smith claims to be following, is the method of
contemporary institutional literature. Civilian works that were written to follow the
order of Justinian’s Institutes began, as the Institutes began, with a discussion of
government.
Adam Smith is not well known as a writer on law. Whether his projected work on
the “general principles of law and government”1 would have given him that reputation we
Douglas Professor of Civil Law, University of Glasgow.
ADAM SMITH, THE THEORY OF MORAL SENTIMENTS VII.iv.37 (D. D. Raphael & A. L. McFie, eds.,
ed.1984) (original publication date) (hereafter TMS). “I shall in another discourse endeavour to
give an account of the general principles of law and government, and of the different revolutions
they have undergone in the different ages and periods of society, not only in what concerns justice,
but in what concerns police, revenue, and arms, and whatever else is the object of law.” Id. at 3.
The advertisement accompanying the sixth edition reads as follows: “In the Enquiry concerning the
Nature and Causes of the Wealth of Nations, I have partly executed this promise; at least so far as
concerns police, revenue, and arms. What remains, the theory of jurisprudence, which I have long
projected, I have hitherto been hindered from executing . . . .” THE CORRESPONDENCE OF ADAM
SMITH no. 116 (Ernest Campbell Mossner & Ian Simpson Ross, eds., 1977; repr. 1987) (to Lord
Hailes; 5 March 1769): “I have read law entirely with a view to form some general notion of the
great outlines of the plan according to which justice has [been] administered in different ages and
nations . . . .” The character and viability of this projected work is discussed in CHARLES L.
*
1
1
can only guess. Those who study his surviving works will know, even so, that he devoted
a great deal of attention to law.2 This is a legacy, unfortunately, that his ambitions as a
philosopher and scholar tended to obscure. Historically Smith was flanked by naturallaw and positivist systematizers, and systems tend to leave conspicuous monuments
behind. Smith, instead, treated law as part of a larger enterprise: the study of mankind
and the communities that mankind creates. Other subjects treated by Smith as part of
this larger enterprise—political economy and moral decision-making—famously received
his most careful attention and elucidation. Law, sadly, did not. Thus we miss his
projected work on law very keenly.
Smith lectured in jurisprudence at the University of Glasgow from 1751 to 1764,
and various records of these lectures survive.3 The lectures reflect the university
curriculum at Glasgow and are no substitute for the lost projected work. Yet they do
reveal one of Smith’s key ambitions: a desire to explain what prompted a given law to be
recognized, i.e., to explain “the causes of laws.” It was Smith’s desire to apply his theory
of moral decision-making to law, and to add into the causal mix some proportion of
history, government, mode of subsistence—indeed anything that might help to explain
the existence of any law he brought within his sights. As such, the records of these
lectures help us to understand at least some portion of Smith’s thinking on law,
otherwise denied to us.
GRISWOLD, ADAM SMITH AND THE VIRTUES OF ENLIGHTENMENT 256-58 (1999); DONALD WINCH, ADAM
SMITH’S POLITICS: AN ESSAY IN HISTORIOGRAPHIC REVISION 9-27 (1978); Donald Winch, Adam Smith’s
“enduring particular result”: A Political and Cosmopolitan Perspective, in WEALTH AND VIRTUE: THE
SHAPING OF POLITICAL ECONOMY IN THE SCOTTISH ENLIGHTENMENT 253-69 (Istvan Hont & Michael
Ignatieff, eds., 1983).
2 For discussion of Adam Smith and law within a brief compass, see David Lieberman, Adam Smith
on Justice, Rights, and Law, in THE CAMBRIDGE COMPANION TO ADAM SMITH 214-45 (Knud
Haakonssen, ed., 2006); Neil MacCormick, Adam Smith on Law, 15 VAL. U. L. REV. 243 (1981),
reprinted in ADAM SMITH 189 (Knud Haakonssen, ed., 1998). Arguably Smith’s most profound
contribution to law is his exposition of the concept of justice. For discussions of Smith’s moral
theory generally and justice specifically, see JAMES R. OTTESON, ADAM SMITH’S MARKETPLACE OF LIFE
13-100 (2002); Griswold, supra note 1, at 231-44; D. D. Raphael, Adam Smith, in CONCEPTS OF
JUSTICE 113-25 (D. D. Raphael, ed., 2001). See also KNUD HAAKONSSEN, THE SCIENCE OF THE
LEGISLATOR: THE NATURAL JURISPRUDENCE OF DAVID HUME AND ADAM SMITH 93-98 (1989)
(contrasting the laws of justice and the laws of police). See also the remarks of John Millar, related
at second hand in Dugald Stewart, Account of the Life and Writings of Adam Smith, LL.D., in
Adam Smith, ESSAYS ON PHILOSOPHICAL SUBJECTS 263, 274-75 (photo. reprint 1982) (W. P. D.
Wightman, J. C. Bryce & I. S. Ross, eds., 1980) (describing the relations among the different
components of Smith’s jurisprudence lectures and their connections to The Theory of Moral
Sentiments). Smith’s moral theory, founded on the ability of human beings to assess the propriety
of human conduct and assign merit to it, is an important component of all of Smith’s writings on
law. It affects considerably the question whether, to Smith, the legislature or the courts is the
better law-making organ. See John W. Cairns, Adam Smith and the Role of the Courts in Securing
Justice and Liberty, in ADAM SMITH AND THE PHILOSOPHY OF LAW AND ECONOMICS 31 (Robin Paul
Malloy & Jerry Avensky, eds., 1995); John W. Cairns, Ethics and the Science of Legislation:
Legislators, Philosophers, and Courts in Eighteenth-Century Scotland, 8 JAHRBUCH FÜR RECHT UND
ETHIK 159 (2000); and briefly in John W. Cairns, Attitudes to Codification and the Scottish Science
of Legislation, 1600-1830, 22 TUL. EUR. & CIV. L.F. 1, 45-47 (2007). It is also the engine for
historical development in law. See HAAKONSSEN, supra note 2, at 99-177; PETER STEIN, LEGAL
EVOLUTION: THE STORY OF AN IDEA 29-46 (1980).
3 The critical edition, containing the two principal sets of notes, is ADAM SMITH, LECTURES ON
JURISPRUDENCE (R. L. Meek, D. D. Raphael, and P. G. Stein, eds., (1982) (1978). By common
convention the earlier of the notes is cited LJA and the latter LJB, and they are cited in this way
below. Citations to the extensive introduction to the critical edition are given below as LJ
INTRODUCTION. In addition to these two sets of notes, some brief extracts of a student’s notes to an
earlier course of these lectures, perhaps from the mid 1750s, is given in R. L. Meek, New Light on
Adam Smith’s Glasgow Lectures on Jurisprudence, 8 HISTORY OF POLITICAL ECONOMY 466-77 (1976),
reprinted in R. L. MEEK, SMITH, MARX AND AFTER 81-91 (1977) (hereafter ANDERSON NOTES).
2
In his final year at Glasgow, Smith undertook to reorganize his jurisprudence
lectures. He had formerly begun the lectures on justice4 by speaking on the central
institutions of private law (property and obligations), then on domestic law (matters that
civilians would treat under the law of persons), and last on forms of government. In his
final year of lectures, however, he began with forms of government, then passing to
domestic law and private law. Lacking as we do a full account of Smith’s views on law,
we naturally ask whether the changes are significant in any way. Smith himself
explained briefly his decision to reorder the lectures. His explanation falls near the
beginning of the revised course of lectures.
The origin of natural rights is quite evident. . . . But acquired rights such as
property require more explanation. Property and civil government very much
depend on one another. The preservation of property and the inequality of
possession first formed it, and the state of property must always vary with the
form of government. The civilians begin with considering government and then
treat of property and other rights. Others who have written on this subject begin
with the latter and then consider family and civil government. There are several
advantages peculiar to each of these methods, tho’ that of the civil law seems on
the whole preferable.5
Smith does not give a great deal away. He does not explain what civilian model he is
following, nor what advantage he finds in the so-called method of the civil law. Most
importantly, he leaves open the question whether his thoughts on law and the “causes of
laws” had changed before he gave his final course of lectures.
This article discusses Smith’s decision to reorganize his lectures, and makes a
modest argument, which for convenience may be summarized as follows. Smith wanted
to describe how certain laws came about—what caused them to be. He occasionally
explained how certain laws came about by reference to the “ages of society.”6 His notion
was that societies tend to present themselves under the model of one of four ages, each
age identifiable by a certain mode of subsistence. This “stadial theory” alone, however,
was inadequate to explain the genesis of most laws, and to explain a given law Smith
often turned to a more immediate cause: form of government. Certain forms of
government tended to produce certain laws. Properly speaking, these latter arguments
were not independent of the stadial theory, but were related to it in ways that Smith had
not yet fully worked out. Scientific rigor, however, was a less urgent problem than
exposition: in postponing his introduction to forms of government, Smith was
handicapped in presenting his arguments. He cured the problem by reorganizing the
lectures and discussing form of government at the beginning. In doing so he selected a
civilian model founded on the institutional literature of his time.
“Justice” forms the first part of the lectures on jurisprudence, and is followed by “police, revenue
and arms.” See infra note 9. See LJA i.1-2; HAAKONSSEN, supra note 2, 95-96. On the foundations
of the division, and its shortcomings, see Lieberman, supra note 2, at 234-39.
5 LJB 11.
6 Judging by the earlier, verbatim record of the lectures, Smith favored the word “age” over “stage”
in this context. He introduces the subject with the word “state” and follows with the appositional
“or age” (LJA i.27). He then uses “age” repeatedly in the principal discussion: LJA i.27-65. “Age(s)
of society” appears at LJA i.27, 32, 33, 64; vi.100. See also iv.28 (“ages before government is
established”). “Stages of society” appears at LJA ii.152; iii.116. See also LJA ii.53 (“stages of
commerce”); ii.75 (“stages of civill government”).
4
3
The Glasgow lectures on jurisprudence
Smith’s lectures on jurisprudence at Glasgow are well known and it is necessary
here only to relate a few important points.7 The full course of lectures comprised natural
theology, ethics,8 and jurisprudence.9 Ethics and jurisprudence (“moral philosophy”) at
Glasgow was founded on Pufendorf’s De officio hominis et civis10 at the instigation of
Gershom Carmichael (1672-1729), one of Smith’s Glasgow predecessors, in the 1690s.11
Carmichael and his successors, up to and including Smith, had presented moral
philosophy in the same broad order of subjects as Pufendorf, though Carmichael had
famously inverted Pufendorf’s scheme of duties into a scheme of rights.12 Smith inherited
this scheme of rights, and at the outset he preserved the order of subjects he inherited.
The specific scheme Smith inherited was that of Francis Hutcheson, Smith’s predecessor
but one in the Glasgow chair, and the author of the textbook on which the moral
philosophy portion of the course was then based: Philosophiae Moralis Institutio
Compendiaria (1742).13
For an exhaustive discussion of the lectures and the character and provenance of the notes, see LJ
INTRODUCTION, supra note 3, at 2-42. On the ways in which the lectures reflect Smith’s ideas on the
origins of moral decision-making, see Lieberman, supra note 2, at 216-21; Stein, supra note 2, 2946; Peter Stein, Adam Smith’s Jurisprudence — Between Morality and Economics, in JUBILEE
LECTURES CELEBRATING THE FOUNDATION OF THE FACULTY OF LAW UNIVERSITY OF BIRMINGHAM 137
(1981); MacCormick, supra note 2, at 246-57; Knud Haakonssen, What Might Properly Be Called
Natural Jurisprudence?, in THE ORIGINS AND NATURE OF THE SCOTTISH ENLIGHTENMENT 205-25 (R.
H. Campbell and A. S. Skinner, eds., 1982), reprinted in ADAM SMITH 167-87 (Knud Haakonssen,
ed., 1998). For a broad introduction to the lectures, with special attention to the evolution from
natural to historical jurisprudence, and the contribution of Roman law, see GLORIA VIVENZA, ADAM
SMITH AND THE CLASSICS: THE CLASSICAL HERITAGE IN ADAM SMITH’S THOUGHT 84-125 (2001). On the
history of teaching moral philosophy at Glasgow, and Smith’s entrance on the scene, see IAN
SIMPSON ROSS, THE LIFE OF ADAM SMITH 111-27 (1995). On the influence of the lectures on the
entrance qualifications of aspiring advocates in Scotland, see John Cairns, Adam Smith’s Lectures
on Jurisprudence: Their Influence on Legal Education, in ADAM SMITH: INTERNATIONAL
PERSPECTIVES 63-83 (Hiroshi Mizuta & Chuhei Sugiyama, eds., 1993).
8 Smith’s ethics lectures were strongly informed by his own moral philosophy (see Stewart, supra
note 2, at 274) — an important point, as Smith was to rely on his moral philosophy in the
jurisprudence lectures that follow.
9 Jurisprudence itself was divided into two: justice, and police, revenue, and arms. This was a
division observed by Smith’s predecessors, combined by Smith under a single head. See LJ
INTRODUCTION, supra note 3, at 4-5. To Smith, all of these subjects are the “design of every
government” (LJA i.1) or the “objects of law” (LJB 5), but the two components appear to be
distinguished by nothing more nuanced than urgency. See LJA i.1-2; HAAKONSSEN, supra note 2,
95-96. On the foundations of the division, and its shortcomings, see Lieberman, supra note 2, at
234-39.
10 The new critical edition in English: SAMUEL PUFENDORF, THE WHOLE DUTY OF MAN ACCORDING TO
THE LAW OF NATURE (Ian Hunter & David Saunders, eds., 2003).
11 See James Moore & Michael Silverthorne, Gershom Carmichael and the Natural Jurisprudence
Tradition in Eighteenth-Century Scotland, in WEALTH AND VIRTUE: THE SHAPING OF POLITICAL
ECONOMY IN THE SCOTTISH ENLIGHTENMENT 73-87 (Istvan Hont & Michael Ignatieff, eds., 1983).
Translated excerpts of Carmichael’s works are given in JAMES MOORE & MICHAEL SILVERTHORNE,
NATURAL RIGHTS ON THE THRESHOLD OF THE SCOTTISH ENLIGHTENMENT: THE WRITINGS OF GERSHOM
CARMICHAEL (2002).
12 James Moore & Michael Silverthorne, Natural Sociability and Natural Rights in the Moral
Philosophy of Gerschom Carmichael, in PHILOSOPHERS OF THE SCOTTISH ENLIGHTENMENT 6-8 (V.
Hope, ed., 1984).
13 See ROSS, supra note 7, at 112. The modern critical edition is FRANCIS HUTCHESON,
PHILOSOPHIAE MORALIS INSTITUTIO COMPENDIARIA, WITH A SHORT INTRODUCTION TO MORAL
PHILOSOPHY (Luigi Turco, ed., 2007).
7
4
The two principal sets of lecture notes relate to the lectures on jurisprudence
given by Smith in 1762-1763 and (probably) 1763-1764.14 As Smith left Glasgow in
January of 1764,15 it seems likely that at least some portion of the latter course of
lectures was given by another with the aid of Smith’s own materials.16 The notes differ
from one another in character; the earlier set is virtually a verbatim record by,
apparently, at least two different students, while the latter is a summary, somewhat
redacted after being prepared. The notes also differ in the extent of their coverage. The
latter set gives a full account of the second component of jurisprudence (police, revenue,
and arms), while the earlier set closes well before the second component is complete. The
first component (justice) is treated to an equal extent in both sets of notes, with due
allowance for the more abbreviated presentation of the latter set, and allowance also for
Smith’s decision to follow the method of the civil law in the latter lectures, the subject of
this article.
The rights framework; natural and adventitious rights
In the scheme Smith inherited from Hutcheson,17 justice was treated as an
analysis of the rights that belonged to man. Rights were assembled in a careful
taxonomy based on the context in which the right arose.18 For example, rights that
related to citizenship or servile status were of a different quality from rights that related
to marriage, and both of these were of a different quality from ownership rights. Smith
and his predecessors, taking account of these different contexts, observed a broad threefold division.19 A man may have a right —
1. as a man;
2. as a member of a family;
3. as a citizen or a member of a state.
The first of these subdivided further, so that a man —
1. as a man,
a. may have a right in his person;
b. may have a right in his reputation;
c. may have a right in his estate.
Each of these various divisions gave the writers the opportunity to discuss kindred rights
collectively. A good deal of public law, for example, fell within the ambit of a right “as a
The earlier set of lecture notes contains a sufficient number of date references to make the
chronology clear, but the latter set of notes indicates only its date of preparation (1766), and hence
the date of these lectures is an inference, though a fairly secure one.
15 Smith’s travels with the Duke of Buccleugh from January are related in ROSS, supra note 7, at
195-219.
16 LJ INTRODUCTION, supra note 3, at 8-9.
17 The evolution of the scheme up to Smith is outlined within a brief compass in PETER STEIN, From
Pufendorf to Adam Smith: The Natural Law Tradition in Scotland, in EUROPÄISCHES
RECHTSDENKEN IN GESCHICHTE UND GEGENWART: FESTSCHRIFT FÜR HELMUT COING 667-79 (N. Horn,
et al., eds., 1982), reprinted in THE CHARACTER AND INFLUENCE OF THE ROMAN CIVIL LAW: HISTORICAL
ESSAYS 381-93 (1988).
18 The word “context” is too vanilla to describe the basis of the rights-framework before Smith; the
framework was founded ultimately on the nature of the different duties owed by man. To Smith,
however, it is fair to say that the framework was largely serviceable as a way to discuss laws and
institutions by subject-matter, except where it fortuitously reflected his distinction between natural
and adventitious rights, discussed below.
19 See LJA i.9-12; LJB 6-7. For what is given below, see the extensive discussion in HAAKONSSEN,
supra note 2, at 99-134.
14
5
citizen or a member of a state”; various liberty rights fell within the ambit of the right of
a man “in his person”; and much of private law—property, contract, and delict—fell
within the ambit of the right of a man “in his estate.” Context, however, was not the only
organizing principle for rights. A right was also distinguished by origin, though here
Smith’s treatment of origins must be sharply distinguished from that of his predecessors.
In the traditional scheme, some rights belonged to a man under natural law,
while others were “man-made,” the so-called acquired, or adventitious, rights.20 This
mode of classification does not “cut across” the taxonomy just given, but informs it. In
other words, certain categories in the scheme contained natural rights, others,
adventitious rights:
1. As a man
a. in his person (natural)
b. in his reputation (natural)
c. in his estate (adventitious)
2. As a member of a family (adventitious)
3. As a citizen or a member of a state (adventitious)
Thus liberty rights, for example, as they belong to a man “in his person,” are natural in
origin, while property rights, as they belong to a man “in his estate,” are adventitious in
origin.
When Smith took up the lectures, he embarked on an enterprise quite different
from that of his predecessors, and it is remarkable he was able to use their model,
preserving even a shadowy outline of natural and adventitious rights.
Smith recognized that a scientific understanding of man’s relations with his
fellows could only be developed by the experimental method used by Newton in
the physical sciences. Such an understanding must be based on observation of
how men actually behave in different situations. He also accepted that, although
the conditions of society vary considerably in different places and different ages,
human nature remains constant . . . .21
“Private rights of individuals according to their different originals are either natural or
adventitious. The natural are such as each one has from the constitution of nature itself without
the intervention of any human contrivance, institution, compact, or deed. The adventitious arise
from some human institution, compact, or action.” FRANCIS HUTCHESON, 1 A SYSTEM OF MORAL
PHILOSOPHY 293 (1755) (emphasis in original). “Nature herself has endowed each man with natural
rights; adventitious rights arise from some human action or other event.” Gershom Carmichael,
Supplements and Observations upon Samuel Pufendorf’s On the Duty of Man and Citizen according
to the Law of Nature, in MOORE & SILVERTHORNE, supra note 11, at 77. “Some of these [duties]
proceed from that common Obligation which it hath pleas’d the Creator to lay upon all Men in
general; others take their Original from some certain Human Institutions, or some peculiar,
adventitious or accidental State of Men.” SAMUEL PUFENDORF, THE WHOLE DUTY OF MAN,
ACCORDING TO THE LAW OF NATURE (Andrew Tooke, trans., 2003) (emphasis in original).
21 Stein, Adam Smith’s Jurisprudence, supra note 7, at 139-40. Stein’s reference to Newton is
perhaps intended to recall the famous remark of John Millar: “The great Montesquieu pointed out
the road. He was the Lord Bacon in this branch of philosophy [the history of civil society]. Dr.
Smith is the Newton.” 2 JOHN MILLAR, AN HISTORICAL VIEW OF ENGLISH GOVERNMENT 404 n.(*)
(Mark Salber Phillips & Dale R. Smith, eds., 2006). Smith himself praises Newton’s principles
effusively in ADAM SMITH, The History of Astronomy, in ESSAYS ON PHILOSOPHICAL SUBJECTS 31, 98105 (W. P. D. Wightman & J. C. Bryce, eds., 1980; repr. 1982) and ADAM SMITH, LECTURES ON
RHETORIC AND BELLES LETTRES 145-46 (J. C Bryce, ed., 1983; repr. 1985). On Smith’s adherence to
a Newtonian system, see the authorities cited infra, note 23.
20
6
Smith, unlike his Glasgow predecessors, was an enthusiastic gatherer of data,22
specifically data about laws as they were observed in human communities over a vast
span of time. In a scientific spirit, he set out to explain the genesis of these laws
causally.23 The task was possible only because he saw laws as ultimately the product of
the moral decision-making of human beings. The constancy and predictability of human
moral decision-making in the face of different underlying conditions made causal
explanations possible. These laws, moreover, could be organized in the traditional
framework without doing violence to the causal explanations; pedagogy, after all, would
have made it sensible, in any event, to discuss slavery, ownership, promises, etc.,
separately.
What about natural and adventitious rights? This would seem to be a distinction
of no earthly use to Smith, who had embarked on what we would call a “sociological”
project and ostensibly could not accept the existence of a natural right founded on the
“constitution of nature.”24 Yet this is where Smith could summon his theory of morals to
explain natural and adventitious rights in a way that both united and distinguished
them. Humans self-evidently make different moral judgments in different times and
places, but the mechanism by which they make those judgments is the same.25 The
foundation of this mechanism is the psychological fact that humans spontaneously
experience a fellow-feeling or “sympathy” with other people. When they see a person, for
good or ill, acting upon another, they spontaneously imagine themselves doing the same,
and spontaneously weigh the propriety of the act. At the same time they imagine
themselves to be the object of the act and, again spontaneously, weigh their feelings.
This produces a judgment on whether the act should be answered by punishment or
reward. The judgment, however, is not the product of accident, caprice, or reason. It is
instead the slow consequence of the accumulated experiences of one’s having lived in a
human community and having oneself been the object of others’ sympathetic
observations.26 This, at its briefest, is how Smith understood the mechanism of moral
decision-making, and it is this process of decision-making that ultimately causes human
communities to recognize rights of every kind—natural and adventitious.
It is worth stressing that Smith, though a gatherer of data, was not the first at Glasgow to reject
rationalist natural law. Hutcheson, like Smith, examined how the thoughts and behaviour of
human beings could form a foundation for moral judgment. See John Cairns, Legal Theory, in THE
CAMBRIDGE COMPANION TO THE SCOTTISH ENLIGHTENMENT 231 (Alexander Broadie, ed., 2003), and
the literature cited id. at 240-41 n.44.
23 On the question whether Smith envisioned a single causal model for both the natural and social
sciences, see Christopher J. Berry, Smith and Science, in THE CAMBRIDGE COMPANION TO ADAM
SMITH 112, 126-34 (Knud Haakonssen, ed., 2006) (with literature). Berry has described Smith’s
position as one of “soft determinism”: moral causes operate predictably but nevertheless
accommodate changes in circumstance. Id. at 130-34. On Smith’s scientific aspirations generally,
and contrasts with David Hume, see ATHOL FITZGIBBONS, ADAM SMITH’S SYSTEM OF LIBERTY,
WEALTH, AND VIRTUE 75-94 (1995) (with literature).
24 See supra note 20.
25 Among the many excellent summaries of Smith’s moral theory are these: ADAM SMITH, THE
THEORY OF MORAL SENTIMENTS vii-xxi (Knud Haakonssen, ed., 2002); OTTESON, supra note 2, at 13100; ROSS, supra note 7, at 157-76; T. D. CAMPBELL, ADAM SMITH’S SCIENCE OF MORALS (1971).
26 See TMS III.i.3 (describing the impossibility of formulating, in solitude, notions of propriety or
demerit). The passage is discussed in Berry, supra note 23, at 133-34, who stresses that morals,
though acquired by learning and explicable by the social scientist, are nevertheless well within
one’s power to criticize and condemn. See also Knud Haakonssen, Natural Jurisprudence and the
Theory of Justice, in THE CAMBRIDGE COMPANION TO THE SCOTTISH ENLIGHTENMENT 205, 212
(Alexander Broadie, ed., 2003): “[I]f the activity of a person is to be seen — by others and by the
person herself — as belonging to that person in more than the sense of being physically caused by
her, then the activity in question has to be seen from a standpoint that is common to both
spectators and the person who is active.”
22
7
The thesis, however, is not so simple as “moral judgments give rise to rights.”
Some rights are in fact more determined, and their content more certain, than others.27
This is because man’s psychology, for whatever reason, reacts with special revulsion to
certain injuries, in particular certain injuries against the person. In these cases the
injury is especially vivid to the spectator; the process of moral decision-making is
unaffected by events surrounding the injury; and the community—indeed every
community—is unanimous in its condemnation. Other kinds of injuries might sometimes
excite equal or greater revulsion, and equal or greater condemnation, but they do not
belong in the special class, because the spectator’s response, even when heightened, owes
some portion of its intensity to the particular circumstances in which the injury was
committed. Thus this sort of injury is less determined and the attendant right to be free
from that injury is contingent, while the other sort of injury is determined and the
attendant right to be free from that injury is non-contingent.28 Smith adopted the term
adventitious to describe the contingent rights, and natural to describe the non-contingent
ones.29
Historical jurisprudence
It is not cynical to suggest that the principal reason why Smith troubled to keep
alive the distinction between natural and adventitious rights is that it gave him the
opportunity to isolate the class of rights that most interested him: rights that could be
explained causally. The overwhelming proportion of the lectures is indeed devoted to
explaining laws that required explaining, and not to laws that could be explained with a
footnote to The Theory of Moral Sentiments. Among the causes he proposed to consider in
depth, one has already been mentioned: form of government. Another cause, also closely
identified with his historical jurisprudence, is mode of subsistence, and this requires a
brief introduction.
This branch of Smith’s historical jurisprudence is based on the idea that a society
provides for its subsistence in a certain way, and that different modes of subsistence
prompt the creation of certain rights, or more mildly, that they leave their mark on those
rights. Each mode of subsistence delineates a certain so-called “age” —four in number—
and one can locate, historically, the genesis of certain rights in certain ages.30 There is a
chronological order to the ages, but there is no suggestion that a civilization necessarily
progresses through every age, or that laws were utterly determined by materialist
27 The explanation of natural and adventitious rights that follows owes a great deal to
HAAKONSSEN, supra note 2, at 100-103, with the minor qualification discussed below in note 28.
28 It is not usual to describe adventitious rights as “contingent,” but the alternatives (“historical,”
“governmental”) slightly miss the mark. The important point is that adventitious rights are partly
determined by the circumstances that gave rise to them and, properly speaking, any circumstance
at all can be a causal factor: climate, topology, rank, etc. See HAAKONSSEN, supra note 2, at 101.
29 See, e.g., LJA ii.93: “Crimes are of two sorts, either 1st, such as are an infringement of our
natural rights, and affect either our person in killing, maiming, beating, or mutilating our body, or
restraining our liberty, as by wrongous imprisonment, or by hurting our reputation and good name.
Or 2dly, they affect our acquired [adventitious] rights, and are an attack upon our property, by
robbery, theft, larceny, etc.”
30 One or another age makes its appearance singly in places, but for discussions of the four ages
together, see LJA i.26-35, iv.1-40; LJB 19-30, 149-151; ANDERSON NOTES, supra note 3, at 467-68;
ADAM SMITH, 2 AN INQUIRY INTO THE NATURE AND CAUSES OF THE WEALTH OF NATIONS V.i.a-b.17 (R.
H. Campbell, et al., eds., 1976) (hereafter WN). See also Adam Smith, First Fragment on the
Division of Labour, in ADAM SMITH, LECTURES ON JURISPRUDENCE 583-84 (R. L. Meek, et al., eds.
1978) (brief remarks on the ages of civilization and division of labour). Extended treatments: R. L.
MEEK, SOCIAL SCIENCE AND THE IGNOBLE SAVAGE (1976); PETER STEIN, The Four Stage Theory of the
Development of Societies, in THE CHARACTER AND INFLUENCE OF THE ROMAN CIVIL LAW: HISTORICAL
ESSAYS 395-409 (1988); A. S. SKINNER, Historical Theory, in A SYSTEM OF SOCIAL SCIENCE: PAPERS
RELATING TO ADAM SMITH 76-105 (1996).
8
concerns.31 Nor is there any suggestion that certain ages necessarily produce certain
laws, or that laws undergo a certain evolution. Smith’s use of the four ages is best
understood as a genetic theory which attempts to explain some of the origins of a
selection of rights by reference to mode of subsistence. Smith’s theory of morals, of
course, undergirds the whole: what members of a community regard as an injury depends
on how spectator-sympathy directs them, and spectator-sympathy may vary with mode of
subsistence.
The four ages of civilization are: the Age of Hunters, the Age of Shepherds, the
Age of Agriculture, and the Age of Commerce. Below is a brief description of the first
three of these ages. The Age of Commerce evades any simple summary and is unrelated
to the arguments here.32
The Age of Hunters. Subsistence is by collecting wild fruit, catching wild animals,
and fishing.33 The idea of property in any exclusive sense is almost unknown.34 One’s
right to a piece of property is essentially coterminous with possession.35 There is no
proper government.36
The Age of Shepherds. The step between the Age of Hunters and this age is the
“greatest in the progress of society”37 because the notion of property is no longer limited to
possession: property in movables is recognized for the first time.38 This comes about
because the inhabitants of this age need to provide carefully for their sustenance, and
this leads them to store goods and eventually to keep and tame animals.39 Since these
cannot always be in one’s immediate possession, the inhabitants come to regard it as an
“injury” for a person to take something to which another has established some
connection.40 The recognition of property in movables—and the disputes this provokes—
is accompanied by the first appearance of what may be called government.41 There is
See SKINNER, supra note 30, at 82-83; J. SALTER, Adam Smith on Feudalism, Commerce and
Slavery, 13 HISTORY OF POLITICAL THOUGHT 219, 219-24 (1992); HAAKONSSEN, supra note 2, at 18589; CAIRNS, Ethics, supra note 2, at 172. Cf. J. CROSPEY, POLITY AND ECONOMY 68-69 (2001) (“[T]he
element of rational choice in the process of social evolution is precisely what Smith denies.”). On
the materialist interpretation, see especially Winch, Adam Smith’s “enduring particular result”,
supra note 1, at 257-62 (taking Smith at his word that the four ages were introduced to explain how
law and government, in Smith’s words, “grew up with society”).
32 The emergence of a commercial society from the final stages of the age of agriculture,
characterized by feudal land tenure and personal dependency, is described in WN III. See Andrew
S. Skinner, Adam Smith: An Economic Interpretation of History, in ESSAYS ON ADAM SMITH 154,
162-68 (Andrew S. Skinner & Thomas Wilson, eds., 1975) (summary). A commercial society is
marked by a high degree of division of labor, inequality of conditions, and relative opulence. See
Istvan Hont & Michael Ignatieff, Needs and Justice in the Wealth of Nations: An Introductory
Essay, in WEALTH AND VIRTUE: THE SHAPING OF POLITICAL ECONOMY IN THE SCOTTISH
ENLIGHTENMENT 1, 2-8 (Istvan Hont & Michael Ignatieff, eds., 1983) (discussing the paradox
between inequality and opulence). The addition of an “age of commerce,” in this intellectual
tradition, precedes Smith. Stein argues that the addition of this age reflects the decision by certain
Scottish writers to shift attention from property to contract. So long as contract was rooted in
natural law, there was no occasion to explain it historically. STEIN, supra note 30, at 401-405.
Stein singles out Henry Home, Lord Kames, for special mention. Kames had argued that a society
recognized the seriousness of contractual undertakings only when, in its history, it had passed
beyond the use of simple cash sales and came to rely on merchants, who by the nature of their
business rely on the power of convenants. HENRY HOME, LORD KAMES, HISTORICAL LAW-TRACTS 60
(2nd ed. 1761) (Tract II: “History of Promises and Covenants”); STEIN, supra note 30, at 403-405.
33 LJA i.27-28; LJB 149.
34 LJA i.44; LJB 150; WN V.i.b.2.
35 LJA i.41-44, iv.19, 22; LJB 149-150.
36 LJA iv.4, 6-7, 19; LJB 19-20. This point is discussed infra, text accompanying notes 65 to 72.
37 LJA ii.97.
38 LJA i.45-46, iv.43; LJB 150-151; ANDERSON NOTES, supra note 3, at 467.
39 LJA i.28, 44-45; LJB 20, 149.
40 LJA i.45.
41 LJA iv.21; LJB 20.
31
9
little or no legislative power,42 but judicial organs make their first appearance, first via
an assembly, then through the authority of individuals.43
The Age of Agriculture. Agriculture as a mode of subsistence is introduced when
inhabitants find it difficult to sustain themselves by animals alone, and when they
observe that seeds produce plants similar to the plants that bore them.44 This spurs a
realization in the value of land, and by degrees, property in land is recognized for the first
time.45
The ages of society are therefore models that seek to provide modest causal
explanations for the recognition of adventitious rights. Natural rights continue to be
observed in all ages, needing no such explanations. It is important to point out that, even
though natural rights are determined by their received share of spectator-sympathy and
emphatically not by their historical context, nevertheless the very source of these rights
makes it possible for them to arise and be recognized in an early historical period. In The
Theory of Moral Sentiments, Smith explains that “[a]mong equals each individual is
naturally, and antecedent to the institution of civil government, regarded as having a
right both to defend himself from injuries, and to exact a certain degree of punishment for
those which have been done to him.”46 The point is important, because Smith sometimes
finds it useful to “locate” a particular natural right in an early historical period. An
example of this is given in the discussion below.47
The reorganization of the lectures
It will be useful to outline Smith’s reorganization at its highest level.48 The table
below presents the order of subjects as given in the latter course of lectures (second
column). It associates those subjects with the corresponding subjects in the
Pufendorf/Carmichael/Hutcheson rights framework (first column). One notices that the
rights framework is now somewhat scrambled.49 The third column shows the order
Smith followed in the earlier course of lectures. One preliminary point worth noting: the
discussion of the rights of a man in his person and reputation has remained in the same
position over the two courses of lectures.
Rights framework
as a man,
— in his person
— in his reputation
as a citizen or a member
of a state
as a member of a family
as a man,
Lectures 1763-1764 (LJB)
Lectures 1762-1763 (LJA)
11
i.24-25
11-9950
iv.1 - v.149
101-148
149
iii.1-147
i.25 - ii.180
LJA iv.14-15, 18; LJB 22-23.
LJA iv.9-10, 15-16, 30-31; LJB 22, 26.
44 LJA i.30-31; LJB 149.
45 LJA i.50-53; LJB 151.
46 TMS II.ii.1.7 (emphasis added). This is the obverse of his statement in LJB 11, quoted above:
“But acquired rights such as property require more explanation. Property and civil government
very much depend on one another.” See supra the text accompanying note 5.
47 See infra note 101.
48 Within these divisions Smith has made other, less obvious changes in the order of subjects.
Perhaps the most conspicuous of these is his decision to begin the treatment of rights “as a citizen
or a member of a state” with a discussion of the principles of utility and authority, and the doctrine
of original contract. See LJB 12-18; LJ INTRODUCTION, supra note 3, at 27.
49 For the rights framework presented in its traditional order, see supra, text accompanying note
19.
50 The manuscript here leaves a page blank; hence the discontinuity with the next section.
42
43
10
— in his estate
Knud Haakonssen addresses at length Smith’s decision to reorganize his lectures
and offers conclusions on both the reasons for Smith’s decision and the origins of the new
mode of presentation.51 Haakonssen’s conclusions turn strongly on the notion of
authority, and its role in Smith’s natural jurisprudence. Smith, Haakonssen notes,
rejected the idea that man had ever existed in a “state of nature.”52 Haakonssen glosses
this as follows: “The individual would always be living in some kind of social grouping
with systems of governance, even if only the most rudimentary ones, as among bands of
hunters and gatherers.”53 Thus the stadial theory describes not only progress in different
modes of subsistence, but progress in the development of government.54 This, according
to Haakonssen, serves Smith’s theory of rights, because rights presuppose government.
“[A]n explanation of government seemed a necessary presupposition for Smith’s theory of
natural justice or natural law, meaning his theory of rights.”55 This is not, we should
understand, something that Smith was late to appreciate; what Haakonssen appears to
suggest is that when Smith reorganized his lectures, he was attempting to make
manifest, in the very order of the lectures, a point about the nature and origin of rights
that was perhaps unnecessarily obscured in the earlier lectures.
In what respect does Smith’s reorganization—placing government first— reflect
the method of the “civil law”? Haakonssen’s answer:56
At first it is puzzling that Smith should suggest that the “civilians” put
political jurisprudence, or “government,” first. Plainly, no writer on the civil law,
by which Smith meant corpus iuris civilis, began with a discussion of the
principles of political governance (with a partial exception, to be considered later
on). What Smith must have meant—and, one may hope, explained to his
students—was that the civil law always presupposed the existence of political
society, civitas, as a precondition for the law of the civitas.
The “partial exception” to which Haakonssen refers is Samuel von Cocceji (1679 – 1755),57
whom Smith praises as a writer “of note”58 near the opening of the latter course of
lectures. Cocceji was chancellor to Frederick the Great and famously the author of a
successful treatise on natural law. Originally published in 1740 under the title Elementa
jurisprudentiae naturalis et romanae, the treatise, now under the title Novum systema
jurisprudentiae naturalis et Romanae, was appended to an extended commentary on
51 KNUD HAAKONSSEN, Adam Smith Out of Context: His Theory of Rights in Prussian Perspective, in
NATURAL LAW AND MORAL PHILOSOPHY: FROM GROTIUS TO THE SCOTTISH ENLIGHTENMENT 129-53
(1996).
52 LJB 3: “[I]t in reality serves no purpose to treat of the laws which would take place in a state of
nature, or by what means succession to property was carried on, as there is no such state existing.”
53 HAAKONSSEN, supra note 51, at 130 (emphasis added).
54 Id. at 134.
55 Id. at 135.
56 Id. at 130 (emphasis in original).
57 For what follows, see Erich Döhring, Cocceji, Samuel, in 3 NEUE DEUTSCHE BIOGRAPHIE 301-302
(Historische Kommission bei der Bayerischen Akademie der Wissenschaften, ed., 1957) (career);
Roderich von Stintzing, Cocceji, Samuel, in 4 ALLGEMEINE DEUTSCHE BIOGRAPHIE 373-76
(Historische Kommission bei der Bayerischen Akademie der Wissenschaften, ed., 1876) (works).
58 LJB 4. The passage in full: “The next who wrote on this subject was Baron de Cocceii, a
Prussian. There are five volumes in folio of his works published, many of which are very ingenious
and distinct, especially those which treat of laws.” It is quite possible that the final remark is a
joke, in which case he perhaps esteems Cocceji less.
11
Cocceji’s father’s work on Grotius,59 and then republished in many editions under the
title Iustitiae Naturalis et Romanae Novum Systema.60 Smith’s debt to this work, as
evidenced in the jurisprudence lectures, is very great.61 Though regarded as a writer on
natural law, Haakonssen brings Cocceji into the civil law fold by noting that he presented
his discussion of rights in the order of the Roman civil law: persons, property, and
personal rights (i.e., obligations). Haakonssen thus identifies Cocceji as a possible
inspiration for Smith’s reorganization: “[T]he new need for a socio-psychological and
historical account of the intertwining of rights and the rest of social living would have
tempted him to follow Cocceji’s Romanizing and put the account of social authority
first.”62
The main difficulty with Haakonssen’s argument is the significance he assigns to
the role of government in Smith’s system of rights. That government (or more accurately,
form of government) shapes the nature of adventitious rights is quite true, but that
Smith viewed the whole of the adventitious rights structure as, to some degree, the
product of government, is far less certain. Man always lived in some sort of social
grouping,63 but Haakonssen has somewhat conflated social grouping with systems of
governance64 in an attempt to bring Smith’s system of rights—indeed all of it—under the
umbrella of government.
In Smith’s historical account, government and authority, though not slow to
arrive, do not properly make their appearance until the age of shepherds. Smith’s
discussion of the matter is careful and nuanced.65 In the earliest age, the age of hunters,
“there can be very little government of any sort, but what there is will be of the
democraticall kind.”66 By “democraticall” Smith means that the community as a whole
exacts punishment for individual transgressions, and that matters of peace and war are
matters for the whole people to decide.67 Smith is at pains to make clear that he does not
regard this as “government,” and that he does not see government as coming into
existence until the subsequent age: “The age of shepherds is that where government
SAMUEL L. B. VON COCCEJI, INTRODUCTIO AD HENRICI L. B. COCCEII . . . GROTIUM ILLUSTRATUM,
(1748) (Dissertatio XII). This was the edition in
Smith’s library: HIROSHI MIZUTA, ADAM SMITH’S LIBRARY: A CATALOGUE No. 377 (2000).
60 Edition consulted: SAMUEL L. B. VON COCCEJI, IUSTITIAE NATURALIS ET ROMANAE NOVUM SYSTEMA
(1762) (published in Lausanne by Marcus-Michael Bousquet). A different publication history is
given in HAAKONSSEN, supra note 51, at 136-37 & nn. 19, 21.
61 The editors of the lectures have noted various passages in which Cocceji is mentioned, or his
influence is present: LJA, at 28 n.45, 36 & n.75, 39 n.82; 324 n.82; LJB, at 398 (eliding father and
son). See also Ernest Metzger, Adam Smith and Roman Servitudes, 72 TIJDSCHRIFT VOOR
RECHTSGESCHIEDENIS 327 (2004), which is an extended study of Smith’s use of Cocceji in one area of
private law.
62 HAAKONSSEN, supra note 51, at 147-48. Precisely how Cocceji served as a civilian model, and
justified putting “the account of social authority first,” is not clear in Haakonssen’s account.
Haakonssen appears to discover some inspiration in Cocceji’s discussion of the law of persons (see
COCCEJI, supra note 60, at 48-127), and in particular the observation by Cocceji that certain
matters of status are actionable quite apart from any rights granted under the main body of private
law. HAAKONSSEN, supra note 51, at 143-44. It is true that among the conditions discussed by
Cocceji in this passage is status determined de civitate (“according to statehood”: COCCEJI, supra
note 60, at 125-27), though a modern civilian would take the discussion as simply that of
citizenship, not very different in substance from J. INST. 1.4, which it closely tracks. Whether
Haakonssen’s remark, that “civil law always presupposed the existence of political society, civitas”
(quoted in full supra, in the text accompanying note 56), was intended to evoke the words de
civitate, is not clear from his discussion.
63 Or to be more accurate, the man who lived utterly on his own, and who thus lacked the ability to
develop within himself any moral apparatus, was not worth remarking on. See supra note 26.
64 See the quotation accompanying note 53, supra.
65 LJA iv.3-7; LJB 19-20.
66 LJA iv.4. Similarly, LJA iv.6: “The whole of the government in this state, as far as there is any,
is democraticall.”
67 LJA iv.4-7.
59
CONTINENS DISSERTATIONES PROOEMIALES XII
12
properly first commences.”68 Similarly, in the latter course of lectures: “The
appropriation of herds and flocks, which introduced an inequality of fortune, was that
which first gave rise to regular government. Till there be property there can be no
government, the very end of which is to secure wealth, and to defend the rich from the
poor.”69 The latter passage makes Smith’s intentions clear: the notion of property does
not arrive until the age of shepherds,70 and it is property that prompts the creation of
government by making government necessary. This is not, of course, a detail in Smith’s
jurisprudence, but one of its most essential points of departure. We therefore cannot,
with Haakonssen, accept that Smith regarded systems of governance as a broad
precondition to rights.71 When, moreover, we consider Smith’s discussion of government
in the age of hunters, it is a fair inference that in allowing for so-called “democraticall”
governance during that age, Smith was attempting to accommodate and subdue a
handful of details gathered from Lafitau and Charlevoix, details that might strike an
undiscerning reader as evidence of government.72
David Lieberman also attempts to explain why Smith reorganized his lectures
and, like Haakonssen, attributes the change to something profound in Smith’s natural
jurisprudence.73 To Lieberman, however, Smith made the decision in order to remedy a
problem that had affected his lectures to that point.
[I]t must be acknowledged that the combining of natural jurisprudence and
historical jurisprudence was never entirely seamless. One important fault line
concerned the manner in which Smith’s lectures accommodated two distinct
organizing schemes for the analysis of a legal system. The first, supplied by
natural jurisprudence, distributed the legal materials into three distinct
categories according to the legal status of an individual legal subject: rights as “a
man,” rights as “a member of a family,” and rights as “a member of a state.” The
second, supplied by the taxonomy of the four-stages theory, order the legal
materials according to the relevant “stage” of society, but in a manner that
emphasized the interdependence of those legal rights and legal practices which
the classification of natural jurisprudence separated. As heuristic devices, the
two schemes pointed in different directions.74
Lieberman goes on to argue that, by reorganizing the lectures, Smith was able to bring
together the two interdependent elements (property and government).
One major result of this reordering of materials was that it enabled Smith to
reach far more quickly, and thus give greater prominence to, one of the most
original and powerful elements of his historical jurisprudence: his account of the
LJA iv.7, 74.
LJB 20.
70 Specifically, property in movables. See LJA i.45-46; LJB 150-151; ANDERSON NOTES, supra note
3, at 467.
71 Or to put the matter plainly: adventitious rights must have existed in the pre-governmental age
of hunters. To conclude differently is to accept that the only injuries recognized as such among the
inhabitants of this age were injuries that would invite spectator sympathy and condemnation in
any time or place. This is tantamount to saying that this particular mode of subsistence—hunting
and fishing—is utterly redundant in Smith’s scheme of causal explanation. Cairns says that this
pre-governmental age “only had natural rights.” Cairns, supra note 7, at 70. He is perhaps taking
his cue from statements by Smith like the following: “Thus among hunters there is no regular
government; they live according to the laws of nature.” LJB 19. Smith’s statement, of course, is
broadly true when one compares the age of hunters with the ages that follow—which is surely his
point.
72 LJA iv.5-6.
73 Lieberman, supra note 2, at 230-32.
74 Id. at 231.
68
69
13
emergence of the modern European system of public justice and regular
government.75
Much in Lieberman’s account is very well observed. Few readers should disagree with
the suggestion that the rights framework inherited from Hutcheson did not suit Smith’s
historical jurisprudence; or the suggestion that the last of the four ages served as the
foundation for Smith’s most powerful ideas; or—most important—the suggestion that the
new organization permitted Smith more effectively to ally property and government.
Lieberman’s account falls short, however, as an explanation for Smith’s decision to
reorganize his lectures. Briefly: the stadial theory makes somewhat disconnected
appearances in the lectures, and though no one would deny the significance of the latter
of the four ages in Smith’s enterprise, it is difficult to make the case that the four ages
collectively provided an immanent organizing principle which Smith’s reorganization
helped to realize. The real “tension” between Smith’s enterprise and the lectures he
inherited lies in the significance of “natural” and “adventitious” rights, and even this
tension seems not to have troubled Smith a great deal; the reorganization certainly did
not cure it. These points are treated in detail below.
The explanatory force of the four ages
Smith occasionally refers to one or another of the four ages when discussing
specific antique rules in domestic and private law,76 but his proper discussions of the four
ages occur in two passages in each of the two sets of lecture notes.77 In the earlier
lectures, the four ages first appear as an introduction to the acquisition of property, and
second as an introduction to forms of government.78 In the first of these passages it
appears to have been Smith’s ambition to subject various modes of acquisition
(occupation, tradition, accession, usucapion, and succession) to a stadial analysis.79 Had
he been able to achieve this, and bring what amounts to the whole of the private law of
property into a four-ages framework, it would be easier to conclude, with Lieberman, that
Smith was trying broadly to accommodate the law within the stadial theory. In the
execution, however, he subjected only one mode of acquisition (occupation) to a stadial
analysis,80 and though his analysis can only be described as brilliant, this represents a
significant retreat in his ambitions. The retreat is made explicit in the latter,
“reorganized” lectures where, in the passage corresponding to the one under discussion,81
Smith has offered the four ages as an introduction, not to the acquisition of property
generally, but to occupation alone.82
Why has Smith retreated on the four ages? In a separate study83 this author has
suggested that, for the lectures on private law, Smith relied heavily on Roman law, but
that the Roman sources ultimately frustrated his use of the stadial theory. Traces of
rights that belonged particularly to one of the earlier ages were difficult to find in the
Id. at 232.
See, e.g., LJA i.92 (succession in the ages of hunters and shepherds), i.149 (testamentary
succession in the age of hunters).
77 LJA i.26-35, iv.1-40; LJB 19-30, 149-151.
78 LJA i.26-35 and iv.1-40, respectively. The latter section is introduced with this explanation: “But
before I enter on these [forms of government] particularly, it will be proper to explain the origins of
government, what I take to be the originall form of it, and how the severall governments which now
subsist have sprung from it, and how this original government arose and at what period of society.”
LJA iv.3-4.
79 LJA i.26-27.
80 Described in detail in Metzger, supra note 61, at 341-42.
81 LJB 149-150.
82 As noted in LJ INTRODUCTION, supra note 3, at 30.
83 Metzger, supra note 61, at 351-52.
75
76
14
literature of a legal system that, how ever simple its origins, was highly refined at the
time it was written down and discussed. The principal example given in that study was
servitudes—rights in immovable property—whose origins Smith, by circuitous and
unpersuasive means, was forced to locate in the age of shepherds, an age in which
immovable property did not exist.84 This is an example of the stadial theory not simply
“failing to explain,” but actively getting in Smith’s way.
The stadial theory, at least to the extent Smith had developed it in the lectures,
was perhaps less capable of explaining the “causes of laws” than he would have wished.
One can take Smith’s treatment of intestate succession as an example.85 Smith devoted a
great deal of lecture time to this subject: though it is only one of several modes of
acquisition, and acquisition occupies a relatively small proportion of the notes as a whole,
the notes on succession occupy nearly one-half of a volume (of the six total).86 The stadial
theory makes a brief appearance:87
In the age of hunters there could be no room for succession as there was no
property. Any small things as bows, quiver, etc. were buried along with the
deceased; they were too inconsiderable to be left to an heir.—In the age of
shepherds, when property was greatly extended, the goods the deceased had been
possessed of were too valuable to be all buried along with him. Some of those
which he might be supposed to have the greatest attachment to would be buried,
as a horse, and ox, etc.; the rest would go to the other members of the family as is
hereafter explain’d. Some traces of the custom of burying goods are found long
after.
In Smith’s extended and detailed treatment of succession, this fragment is a trifle. In the
manuscript, moreover, the fragment is written on the reverse of the page, probably
indicating either that (1) the principal note-taker missed it, or (2) it was not included
when the lecture was first given.88 Either possibility diminishes its importance.
The contrast between this fragment and the remainder of Smith’s discussion
could not be greater. Smith appeals to “form of government” again and again to explain
details in the law of succession that the stadial theory would have no hope of explaining.
The following is a selection.
LJA i.98. [Succession by representation was recognised early in Rome, but
relatively late in Scotland:] This proceeded from the nature of the governments.
Id. at 346-51.
One can view Smith’s treatment of intestate succession as an extended refutation of the natural
lawyers, who had founded the law of intestate succession on the supposed inclination of the
decedent to favor those whom, in life, he held most dear. See PUFENDORF, supra note 10, at 133-34;
HUTCHESON, supra note 13, at 152-54. To Smith, this was contrary to the example of history; if the
natural lawyers were correct, then the practice of making wills would have arisen before the
practice of intestate succession, and this was clearly not the case. LJA i.91-92, 103-104, 149-155;
LJB 155-156, 164; STEIN, supra note 2, at 41-42. Thus Smith sets out on a vigorous and exacting
discussion of the historical origins of intestate sucession.
86 LJA i.90 - ii.1.
87 LJA i.92 verso.
88 For various explanations of the material on the verso pages, see LJ INTRODUCTION, supra note 3,
at 12-13. The fragment appears to have no counterpart in the latter set of lecture notes. This could
be evidence that Smith did not mention the four ages at this point in his lectures. Cf. LJB 156: “In
a rude period a man had scarce the full property of his goods during his lifetime, and therefore it
cannot be supposed that then he should have had a power to dispose of them after his death.” This
is not the counterpart to the quoted fragment, but was included as part of a discussion of
testamentary succession, somewhat earlier in the lecture.
84
85
15
LJA i.111. Another considerable odds [between Scots law and the civil law on
right of representation] arose from the difference of the constitution of the two
states.
LJA i.116. As this method of succession [i.e., primogeniture], so contrary to
nature, to reason, and to justice, was occasioned by the nature of feudall
government, it will be proper to explain the nature and temper of this
constitution or form of government, that the foundation of this right may be more
evident.
LJA i.125. It is to be observed that this form of government required that the
possessors of estates should attend their lords in war, or in council in peace, so it
was requisite that every estate should be filled by one who was able to perform
those duties. . . . By this means the burthen of ward was introduced.
LJA i.127. It is to be observed that this government [i.e., feudal] was not <at> all
cut out for maintaining civill government, or police.
LJA i.130. The law at that time (as we shall explain when we consider the origin
of government) did not provide, nor indeed could it, for the safety of the subjects.
LJA i.147. All these varieties betwixt the Scots and English law with regard to
succession, as well as severall differences in the order of succession betwixt them
and the civil law, have been already considered, and the causes which brought
them about explained from the nature of the severall constitutions.
Each of these excerpts marks a serious excursus into the genesis of the laws being
explored. To take the first excerpt (LJA i.98) as an example: the right of a child to
“represent” his deceased father in the succession to the estate of his grandfather was, as
Smith notes, late to arrive in Scotland relative to Rome. In the passage quoted, Smith
attributes this to “the nature of the governments.” In the subsequent passage89 where he
explains the point at length, he narrows the source of the discrepancy to one feature:
primogeniture.90
If it was hard that the eldest son should exclude his brothers, they would think it
hard that their nephew should exclude them after his death. That he who should
naturally owe his safety and depend on them for his protection should be not only
not dependent on them but, on the other hand, that they who were men should be
subjected and dependent on one who might often be a minor or an infant. . . . By
these and such like motives the younger brother would be prompted to deprive
their elder brothers children of the right of inheritance, and by this means it was
long after the introduction of primogeniture ere the right of representation took
place.
This is the age of agriculture, but there is no reason to mention the fact here: the
hallmarks of this age, numerous as they are, are unequal to the task of explaining the
“causes” of the law of succession in a satisfactory way. We recognize, without perhaps
quite knowing the reason, that without the intermediate aid of “form of government” or
something equally powerful, Smith would have no hope of explaining such a developed
legal institution as the right of representation.
89
90
LJA i.135-140.
LJA i.135-136.
16
John Cairns, however, points to the reason in a single sentence. After recounting
some of the principal features of each age, he says “[t]his [stadial] development does not
explain how the rights recognised by the spectators became laws.”91 The stadial theory
explains the existence of a handful of rights, for example the right to possession and the
right to the ownership of movables. To advance further and explain why certain rights
were enforced (i.e., became laws) requires, not the abandonment of the stadial theory, but
a more precise means of causal explanation, including some recourse to law-making
institutions. Cairns’s own concern is to examine the evolution of different organs of
government in Smith’s account, and then consider which of these organs Smith preferred
to see the law issue from.92 Cairns accordingly undertakes to trace the evolution of
judicial and legislative power in Smith’s account. Judicial power arises in the age of
shepherds, proceeding through subtle stages, but the stadial theory is quickly lost to view
as Smith resorts to historical examples. Cairns:93
Smith only loosely mapped the development of government onto his device of the
four stages. No doubt this was because he did not have a crudely deterministic
theory of social change. It means, however, that he never directly addressed the
development of certain institutions of government in a detailed or precise way.
This certainly applies to his account of the growth of legislative and judicial
powers.
This raises of course a quite profound question about Smith’s long-term ambitions:
whether he intended in the fullness of time to discuss law-making institutions more
analytically and less historically, or whether, as Cairns suggests, there was a
deterministic Rubicon he had resolved not to cross. A closer examination of Smith’s
materialism and its role in the genesis of law-making institutions would help to answer
this question.
Far more clear is the fact that mode of subsistence, without the intermediary aid
of “form of government,” cannot properly explain the genesis of laws. Each mode of
subsistence produces, for its associated age, a limited number of rights, whose most
concrete contribution to the development of laws is to provide a series of termini post
quem, e.g.,
1. The advent of the age of shepherds is the terminus post quem for the
recognition of the right of accession. (LJA i.64).
2. The advent of the age of shepherds is the terminus post quem for the
recognition of acquisition by prescription. (LJA i.77).
3. The advent of the age of agriculture is the terminus post quem for the
recognition of rights in land. (LJA i.66).
These are valuable insights, though without the intermediary of “forms of government,”
tautology is an ever-present danger:
— “Accession of crops was unknown until the age of agriculture, being the first
age to recognize ownership in land.”
— “What is the age of agriculture?”
— “It is the age characterized by its recognition of ownership in land.”
Cairns, Ethics, supra note 2, at 173 (emphasis added).
Id. at 173-75. A fuller account is given in Cairns, The Role of the Courts, supra note 2, at 42-45.
93 Cairns, Ethics, supra note 2, at 173 (emphasis added). See also SKINNER, supra note 30, at 84
(emphasis in original): “[I]t is noteworthy that his treatment of public jurisprudence, with its
attendant use of the ‘four stages,’ in fact unfolded within the framework of a historical account of
the origins and nature of the present ‘establishments’ in Europe.”
91
92
17
It seems inconceivable that Smith did not appreciate this danger. It is a strong
inducement to play the stronger hand: form of government.
As part of his lifelong enterprise, Smith may have hoped to link, more clearly,
mode of subsistence to government, and government to law.94 Whether this ambition was
capable of success is not part of this discussion, which is concerned solely with his
decision to reorganize his lectures. We take as our starting point his own explanation,
that “the state of property must always vary with the form of government.”95 We
recognize that the relationships he might have hoped to establish between government
and mode of subsistence were not yet fully worked out at the time he delivered his
lectures. In this state of affairs, it is understandable how, for the sake of exposition, he
would wish to elevate and promote a signally important factor in lawmaking—form of
government—even if the full causal chain, from stadial theory to law, was still a work in
progress.
This discussion began with Lieberman’s suggestion that Smith wished to
accommodate the stadial theory within the uncomfortable environs of the
Pufendorf/Carmichael/Hutcheson framework. The argument here, to the contrary, is that
the stadial theory was not yet ready to assume the burden of explaining the genesis of
laws. The framework, moreover, though clearly at odds with Smith’s jurisprudence, had
in fact always been at odds with Smith’s jurisprudence, without Smith himself giving any
sign of a desire to escape it. This is the subject of the next section.
Framework rights versus natural jurisprudential rights
The Pufendorf/Carmichael/Hutcheson framework was at odds with Smith’s
jurisprudence in this respect:96 the framework “front-loaded” the natural rights, and if
Smith had adhered to this practice, he would have found himself beginning his lectures
on family and private law with a disconnected stream of natural rights drawn from
different areas of the law. This is because, as already noted, his own notion of natural
and adventitious rights differed greatly from the notion on which the framework was
founded. Smith, in a word, had set himself the task of examining adventitious rights
more closely than his predecessors. He sought to explain causally what his predecessors
might have dismissed with “this is the product of human action” or “a jurist invented
this.” He was therefore able, from time to time, to locate a natural right secreted among
a mass of adventitious rights. One example of this, not secreted but in full view, is in his
treatment of delinquency (or delict).97 Severe delicts directed against the body of another
are self-evidently a violation of natural rights. That they happen to fall deep within a
discussion of adventitious rights is of no moment. Cairns: “Given the schema into which
he fitted his analysis of rights this is correct, though at first sight odd.”98 A more subtle
example is acquisition by occupation: though occupation falls squarely within the right of
a man “in his estate,” and was therefore adventitious to Smith’s predecessors,
nevertheless the specific right to hunt game that one is pursuing (a part of the law of
occupation) is, to Smith, a natural right.99 A third example, modeled on the one previous,
concerns the right of a person, named as heir in a will, to accept or decline the
inheritance.100 Inheritance, like occupation, is an adventitious right, and yet to Smith
94 This is the obvious inference from his lengthy introduction to government, introduced by the four
ages: LJA iv.1-40; LJB 19-30.
95 LJB 11.
96 Discussed at somewhat greater length in Metzger, supra note 61, at 338-42.
97 See LJA ii. 93 (quoted supra, note 29); Cairns, Role, supra note 2, at 41.
98 Cairns, Role, supra note 2, at 41.
99 LJA i.20, 37-38, ii.28-29; LJB 9-10, 150, 174.
100 To accept an inheritance (hereditas) was a significant step, because the inheritance comprised a
bundle of other rights (properties, and debts owed and owing), and obviously some inheritances
were best avoided. For background, see William M. Gordon, Succession, in A COMPANION TO
18
the right of the heir to choose to accept the inheritance was a natural right, in the same
manner as one who hunts game has a natural right to have what he pursues.101 He gave
the name “exclusive privilege” to this type of right, and—stirring the pot even more—
offered both natural and adventitious examples.102
Thus Smith’s system of rights clashed openly and repeatedly with the identically
named, but utterly different rights set out in the Pufendorf/Carmichael/Hutcheson
framework. Yet the clashes seem hardly to matter. They certainly have no bearing on
Smith’s decision to reorder his lectures: to say that Smith found himself increasingly at
odds with the framework is tantamount to saying that Smith, until his final year of
lectures, did not fully understand his own notion of rights. The clashes, in any event, are
equally evident in the latter course of lectures. More generally, the fact that Smith was
content, year upon year, to intrude natural rights into all the “wrong places” suggests he
never had any great reverence for the framework.
The method of the civilians
In adopting a new order for his lectures, Smith expressed a preference for the
method of the civilians, who “beg[an] with considering government.”103 To review: the
new order differed from the old in two respects.104 First, the so-called public
jurisprudence, setting out and describing the evolution of forms of government, was
moved from the end to the beginning (after a brief introduction). Second, the so-called
domestic law, setting out rights relating to husband and wife, parent and child, etc., was
placed immediately following public jurisprudence, but before the main body of private
law (property, contract, delinquency) which, in the earlier lectures, it had followed.
When Smith refers to the method of the civilians, we know from context that he is
referring to the order in which civilian works present their subject matter, and not to the
character of the underlying scholarship. Method, in the sense Smith means it, is not
difficult to locate. After the rediscovery of Justinian’s Digest in the eleventh century,
civilian scholarship was dominated by the gloss and steadfastly followed the order of the
JUSTINIAN’S INSTITUTES 80, 81-82 (Ernest Metzger, ed., 1998); J. A. C. THOMAS, TEXTBOOK OF ROMAN
LAW 497-98 (1976).
101 LJA i.19-20, ii.26-41; LJB 9-10, 174-175. See especially LJA ii.27-28:
It is plain that [inheritance] can not be considered as a different species of real right after
the heir has entered to the inheritance, for then he has the same right that the defunct
had and is considered as the same person, having full property in every respect. It can be
in no other case than during the time betwixt the death of the last proprietor and the
entrance of the heir that the inheritance can be considered as giving a new species of a real
right. Now what right is it that the heir has before his entrance? No other but that of
excluding all others from the possession untill he determine in whether he will enter heir
or not. . . . This [exclusive privilege] of inheritance is evidently founded on natural reason
and equity.
Why does Smith take so much trouble to isolate this natural right? The answer perhaps is that he
wished to locate the origins of inheritance at an early age of civilisation, perhaps the age of
shepherds. The age of hunters had no property, and succession would be unknown to those
communities, but the age of shepherds did recognize property—and succession, though in a
rudimentary form. LJA i.92 verso. The age of shepherds, however, lacking virtually every legal
refinement needed to effect a succession of goods, would find this right of the heir essential. By
identifying the right as natural, Smith is able to locate the origins of this important device in the
community that needs it. On “natural rights” as “early rights,” see above, text accompanying note
47.
102 MacCormick commends the category of exclusive privileges as an able characterization of
incorporeal property. MacCormick, supra note 2, at 249.
103 Smith is quoted in full above, in the text accompanying note 5.
104 A table comparing the order of the two lectures is set out above.
19
Corpus iuris civilis.105 Thereafter works became more diverse: a preference for
commentary over gloss freed the writer to some degree from the traditional order.106
Greater freedom was won when the humanist jurists of the sixteenth century lost their
reverence for the text of the Corpus iuris civilis and their successors sought a deeper
principle of legal organization in Justinian’s Institutes. This latter stage is the important
one: it brings a centuries-long ascendancy in the scheme of the Institutes, a work that
helped to organize and inspire many works of scholarship as well as legislation,107
ultimately giving Smith his “method of the civilians.”
The Institutes, broadly speaking, presents itself as a series of events entitling a
person to a particular form of redress.108 The humanist jurists, however, saw something
deeper: a scheme of rights. A particular species of “advantage” attached to one who could
claim ownership in a thing, or one to whom something was owed, and these advantages
(i.e., abstract subjective rights) could be discussed without reference to means of redress.
For present purposes what is significant is the new-found freedom to discuss, criticize,
and arrange these rights. It was a freedom that allowed the creation of a system of rights
inspired by the Institutes but not dependent on the text. It also allowed a divergence of
approaches in presenting Roman and territorial law. Stein:109
In the middle of the seventeenth century, a division can be discerned among
writers offering a systematic presentation of the civil law or of national laws
based on the civil law. One group continued to follow essentially the institutional
arrangement, but with certain refinements. The other preferred to base their
systems on the so-called geometrical method of argument from the general to the
particular. The problem for those who wished to proceed in this way was to
identify the general principles of law, equivalent to the axioms of mathematics,
from which detailed rules could be logically deduced. Such principles were
normally presented as arising from the nature of man in society, the implication
being that anyone who denied their validity would be denying the rationality of
nature itself. Eventually these systems became ideal systems of natural law,
although the detailed rules apparently deduced from the general principles often
bore a strong similarity to the rules of Roman law, but stripped of what could be
regarded as antiquarian details.
The result was two roughly parallel bodies of romanistic literature in the latter
seventeenth and eighteenth centuries: works on natural or territorial law which showed
105 On the rediscovery of the Digest and civilian scholarship to the advent of humanism, see
ANTONIO PADOA SCHIOPPA, STORIA DEL DIRITTO IN EUROPA: DAL MEDIOEVO ALL’ETÀ CONTEMPORANEA
79-98, 149-63, 188-204 (2007); RANDALL LESAFFER, EUROPEAN LEGAL HISTORY: A CULTURAL AND
POLITICAL PERSPECTIVE 252-61 (2009); PETER STEIN, ROMAN LAW IN EUROPEAN HISTORY 43-49, 52-74
(1999).
106 “Whereas commentaries ultimately followed the sequence of the Corpus [iuris civilis], this no
longer applied to treatises. These were monographs dealing exhaustively with a well-defined
subject in a systematic order selected by the author.” LESAFFER, supra note 105, at 260.
107 For a discussion of the influence of the Institutes within a brief compass, see JUSTINIAN’S
INSTITUTES 18-26 (Peter Birks & Grant McLeod, trans., 1987). For a more extensive treatment, see
the authorities cited infra, note 108.
108 The treatment here is indebted to STEIN, supra note 105, at 79-82; Peter Stein, The Fate of the
Institutional System, in HULDIGINGSBUNDEL PAUL VAN WARMELO 218 (Johann van der Westhuizen,
et al., eds., 1984), reprinted in THE CHARACTER AND INFLUENCE OF THE ROMAN CIVIL LAW: HISTORICAL
ESSAYS 73 (1988); Klaus Luig, The Institutes of National Law in the Seventeenth and Eighteenth
Centuries, [1972] JUR. REV. 193.
109 Stein, The Fate of the Institutional System, in THE CHARACTER AND INFLUENCE OF THE ROMAN
CIVIL LAW, supra note 108, at 78.
20
in places a strong Roman footprint, and more traditional civilian works which expounded
Roman law in the older humanistic tradition.110
Smith, in the passage explaining his reorganization, contrasts “civilians” with
“others.”111 He had undertaken to weigh the merits of the two bodies of literature just
discussed. The method of organization attributed to the “others,” being Smith’s own
method to that point, is that of Pufendorf’s De officio hominis et civis (the foundation
work at Glasgow), and of Pufendorf’s natural law followers, such as Christian Wolff,
whose Ius naturae methodo scientifica pertractatum (1740-1748) mirrors Pufendorf’s
work. The civilian model is less obvious but nevertheless plain. That Smith should
attribute a single method of organization to “civilians” is at first surprising, as writers on
the civil law had, to that time, produced varieties of works almost beyond counting. Yet
this very inaccuracy betrays his meaning. He can only be referring to civilian works
founded on the Corpus iuris civilis, and of these, works founded on Justinian’s Institutes
are the only plausible models. This is because, in proposing to adopt a civilian method,
he is comparing the method of “others” who observe the institutional divisions of persons,
property, and obligations, but in a different order.
Smith’s library held the following civilian works.112
1. “Heinecci Antiquitatum 2 Toms.”113 This is probably a reference to: Johann
Gottlieb Heineccius, Antiquitatum Romanarum jurisprudentiam
illustrantium syntagma secundum ordinem Institutionum Justiniani
digestum.114 It is a commentary on Justinian’s Institutes, following the order
of the Institutes.
2. Johann Gottlieb Heineccius, Elementa Juris Civilis, secundum ordinem
pandectarum (1740).115 It is a commentary on Justinian’s Digest, following
the order of the Digest.
3. “Heineccius Ad Institutionum.”116 This may be a reference to the popular
work Johann Gottlieb Heineccius, Elementa iuris civilis secundum ordinem
institutionum.117 It is a brief commentary on Justinian’s Institutes, following
the order of the Institutes.
4. “Arnoldi Vinnii in Institutionum Imperialium Commentarius.”118 This is
probably a reference to: Arnold Vinnius, In quatuor libros institutionum
For further discussion of the parallel traditions, see G. C. J. J. VAN DEN BERGH, THE LIFE AND
WORK OF GERARD NOODT 124-32 (1988); Luig, supra note 108, at 197-200; Peter Stein, Legal
Humanism and Legal Science, 54 TIJDSCHRIFT VOOR RECHTSGESCHIEDENIS 297 (1986), reprinted in
THE CHARACTER AND INFLUENCE OF THE ROMAN CIVIL LAW: HISTORICAL ESSAYS 91 (1988).
111 LJB 11.
112 These books are selected on the basis that they were written following the order of works in the
Corpus iuris civilis. References to books with uncertain titles are taken from entries in a catalogue
prepared at Smith’s direction in 1781; the catalogue is reproduced in TADAO YANAIHARA, A FULL AND
DETAILED CATALOGUE OF BOOKS WHICH BELONGED TO ADAM SMITH NOW IN THE POSSESSION OF THE
FACULTY OF ECONOMICS, UNIVERSITY OF TOKYO (1951; repr. 1966) (appendix II).
113 Mizuta, supra note 59, no. 764.
114 The identification is the suggestion of Mizuta. Edition consulted: JOHANN GOTTLIEB HEINECCIUS,
ANTIQUITATUM ROMANARUM JURISPRUDENTIAM ILLUSTRANTIUM SYNTAGMA SECUNDUM ORDINEM
INSTITUTIONUM JUSTINIANI DIGESTUM (C. G. Haubold & C. F. Mühlenbruch, eds., 1841).
115 Mizuta, supra note 59, no. 765. Edition consulted: JOHANN GOTTLIEB HEINECCIUS, ELEMENTA
JURIS CIVILIS, SECUNDUM ORDINEM PANDECTARUM (Venice, 1791).
116 Mizuta, supra note 59, no. 1726.
117 Edition consulted: JOHANN GOTTLIEB HEINECCIUS, ELEMENTA IURIS CIVILIS SECUNDUM ORDINEM
INSTITUTIONUM (Vienna, 1763). Cf. Mizuta, supra note 59, no. 1726 (attributing to Arnold Vinnius,
and explaining that “[i]dentification is doubtful but there seems to be no work of Heineccius on the
Institutiones”).
118 Mizuta, supra note 59, no. 1727.
110
21
imperialium commentarius academicus et forensis.119 It is an extensive
commentary on Justinian’s Institutes, following the order of the Institutes.
These are examples of works that openly follow the order of the ancient works for which
they provide commentary. They are indeed civilian works, though not free from the
influence of natural law. Vinnius, who taught at the University of Leiden in the middle
seventeenth century, relies on humanist and even pre-humanist authority, but at the
same time shows the influence of Grotius.120 Heineccius deserves special mention
because, though properly classed among writers on natural law, he achieved enormous
success with a work that served both disciplines. Schioppa explains how he straddled the
two worlds.121
Without doubt the prize for the most prolific author, and particularly the one
most widely known and read, goes to Johann Gottlieb Heinecke (Heineccius)
(1681-1741), professor at various German and Dutch universities, whose
Elementa iuris civilis secundum ordinem Institutionum (1725) claimed no fewer
than 150 editions in the course of the century. Equally successful was a parallel
work that followed instead the systematic order of the Digest, in 50 books. These
works owe their enormous success to a concise structure based on short, clear
definitions of each institute followed by a sequence of well-deduced corollaries, set
out in axiomatic fashion. The “pure” principles of Roman private law, with no
lingering over subtilitates, are thus inserted within a systematic and deductive
framework far removed from the ancient law, notwithstanding the adoption of the
traditional scheme of Justinian’s Institutes or Digest. In this form the text
becomes a working institutional introduction to the system of “modern” Roman
private law, anchored directly to the ancient sources, with few references to the
doctrine of the ius commune but instead precise remarks on contemporary
judicial practice, in particular where that practice departs from the rules of
Roman law. The direct recourse to [Justinian’s] ancient legislation, without
doctrinal mediation, is particularly significant: the need for simplification has
now clearly won out.
The works of Vinnius and Heineccius on the Institutes are not necessarily Smith’s
models. They are simply examples of a common literature which appear to have
influenced Smith’s understanding of the civilian method. The following table maps the
order of Smith’s reorganized lectures against the corresponding order of subjects in the
Institutes. As above, the Pufendorf/Carmichael/Hutcheson rights framework is shown in
the first column.
Rights framework
as a man,
— in his person
— in his reputation
as a citizen or a member
of a state
Lectures 1763-1764 (LJB)
Justinian’s Institutes
11
11-99
—
1.2
The identification is the suggestion of Mizuta. Editions consulted: ARNOLD VINNIUS, IN QUATUOR
(Amsterdam, 1655);
ARNOLD VINNIUS, IN QUATUOR LIBROS INSTITUTIONUM IMPERIALIUM COMMENTARIUS ACADEMICUS ET
FORENSIS (Amsterdam, 1665).
120 R. FEENSTRA & C. J. D. WAAL, SEVENTEENTH-CENTURY LEYDEN LAW PROFESSORS AND THEIR
INFLUENCE ON THE DEVELOPMENT OF THE CIVIL LAW 28-30 (1975).
121 Schioppa, supra note 105, at 349 (E. Metzger, trans.)
119
LIBROS INSTITUTIONUM IMPERIALIUM COMMENTARIUS ACADEMICUS ET FORENSIS
22
as a member of a family
as a man,
— in his estate
101-148
149
1.3-26
2.1 - 4.5
One of the notable changes is the relocation of the rights “as a member of a family.” This
now precedes the discussion of rights “as a man in his estate” (property, contract,
delinquency). Family rights are the direct counterpart to what civilian works discuss
under the head of “the law of persons,” and they now rest where the institutional order
would place them. Smith, so far as one can see, does not explain why he made this
change.
The principal question of course is whether Smith would describe with the word
“government” the subject matter of the two opening titles122—or more accurately,
whether he would describe in this way the literature founded on them. Haakonssen puts
the bar very high: “At first it is puzzling that Smith should suggest that the “civilians”
put political jurisprudence, or “government,” first. Plainly, no writer on the civil law, by
which Smith meant corpus iuris civilis, began with a discussion of the principles of
political governance.”123 The Institutes, to be sure, does not begin with “the principles of
political governance” and nor, for that matter, do Heineccius and Vinnius. Smith,
however, did not claim to have found any such civilian work, but simply civilian works
that “begin with considering government.”
The Institutes does indeed begin with “government,” though the reader must get
past the first of the opening titles, which briefly praises justice and contains a handful of
inspiring words for new law students.124 The second of the opening titles begins with the
nature of law (the difference between a people’s own law and the ius gentium)125 and then
gives an account of lawmaking. It describes the various sources of law; the written
sources of law are an opportunity to discuss the individual organs of lawmaking: the
emperor, the magistracies, the jurists, and so on.126 It is, in short, a kind of “potted
constitutional law.” Aside from a few fast references to the practices of other peoples,127 it
is not a discussion of “comparative government.” Nor is it a discussion of “form of
government,” and even less “the principles of government.” It is, however, a discussion of
Roman government. In short, there is little mystery in Smith’s statement that civilians
“begin with considering government,” as this would be true of all contemporary literature
that followed the order of the Institutes.
Smith’s decision to adopt the method of the civilians was not a sign of admiration
for Roman law, but a means of escaping a difficulty. The difficulty was practical rather
than profound: it was awkward to lecture on the “causes of laws” without having first
introduced one of the principal causes. The suitability of the civilian model is a matter of
accident: no civilian writer, ancient or modern, could anticipate Smith’s ingenious use of
“forms of government.”
J. INST. 1.1 (De iustitia et iure), 1.2 (De iure naturali et gentium).
HAAKONSSEN, supra note 51, at 130.
124 J. INST. 1.1. Thomas says that the title “is devoted to generalities of a banal character.” THE
INSTITUTES OF JUSTINIAN: TEXT, TRANSLATION AND COMMENTARY 3 (J. A. C. Thomas, ed., 1975)
125 J. INST. 1.2 pr.
126 J. INST. 1.2.2-12.
127 J. INST. 1.2.3, 10.
122
123
23